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Justinian I · The Digest of Justinian §35.1.55.pr

Condition to Pay a Person Lacking Capacity

Passage 5386 of 9271 · Latin

Summary

The author discusses whether a condition to pay money to a third party who lacks testamentary capacity is valid, concluding that the legatee must comply with the condition to obtain the legacy.

[IDEM libro tertio decimo epistularum. ] §35.1.55.prMacuius, cui fundus legatus est, si Callimacho, cum quo testamenti factionem non habebat, ducenta dedisset: condicioni parere debet et ducenta dare, ut ad eum legatus fundus pertineat, licet nummos non faciat accipientis: quid enim interest, utrum tali personae dare iubeatur an aliquo loco ponere uel in mare deicere? neque enim illud, quod ad talem personam peruenturum est, testamenti nomine, sed mortis causa capitur.
[THE SAME in the thirteenth book of Epistles.] Macuius, to whom a tract of land has been bequeathed, if he should have given two hundred to Callimachus, with whom he did not have the capacity to take under a will, must comply with the condition and give the two hundred, so that the bequeathed tract of land may belong to him, even though he does not make the coins the property of the recipient. For what difference does it make whether he is ordered to give to such a person, or to place them in some location, or to throw them into the sea? For indeed, that which is to come to such a person is not acquired under the name of a testament, but is taken mortis causa.

Notes

  1. 35.1.55.prtestamenti factionem — The term testamenti factio (testamentary capacity) here refers specifically to the capacity to take under a will (passive testamentary capacity). Since the testator or heir did not share this capacity with certain persons (such as foreigners), a direct legacy to them would be void, but ordering a payment to them as a "condition" imposed on a legatee is held to be valid.
  2. 35.1.55.prnummos non faciat accipientis — The subject of the subjunctive faciat is Macuius. accipientis is a possessive genitive, used with facere to mean "to make (the object) the property of (someone)" (hence "make the coins the property of the recipient"). This clause is introduced by the concessive licet ("although/even if").
  3. 35.1.55.prquid enim interest — The double indirect question introduced by utrum... an... serves as the subject of the impersonal verb interest. The subject of iubeatur is the legatee Macuius from the preceding sentence, and the subsequent infinitives ponere (to place) and deicere (to throw) are also dependent on the idea of his being ordered.

Cite this passage

Justinian I, The Digest of Justinian §35.1.55.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.55.pr

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